# FILED
July 1, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON

WILLIAM EDWA RD WHITT, ) ) Petitioner, ) C. C. A . NO. 02C01-9 704-CC-00140 ) vs. ) LA KE COUNTY ) STA TE OF TENN ESSEE, ) No. 97-7593 ) Respondent. )

O R D E R

This matter is before the Court upo n the state’s mot ion to affirm the judgment of the tr ial court und er Rule 20, R ules of the Court of Criminal Ap peals. The case before this Court repre sents an appeal from t he trial cour t’s denial of the petitioner’s

petition for w rit of habeas cor pus. The record was filed on April 8, 1997, and the petitioner f iled his brief on April 21, 1997. Altho ugh the record does not contain a copy of the in dictment at iss ue, thereby p recluding the Court from conducting an adequate rev iew, the pet itioner ass erts in his brief that he was origi nally in dicted for aggravated rape in Oc

tober 1985, and subs equently convicted of the same. In the present appeal, the pe titioner contends the judgme nt entered against him is void because the indi ctment failed to al lege the mens r ea of the offense charged.
Having reviewed the state’s motion in light of the petitioner’s response and the entire record on app eal, we conclude that the motion is well-taken and should be granted. The t rial judg e dismissed thepetitioner’ s petition, stating that “ [a]llegati ons concerning the sufficien cy of an indictment are not sub ject to habeas corpus relief. ” The trial cour

t also over ruled the petit ioner’s moti on to reconside r the order d ismissing the origi nal petition. It is well establi shed that chall enges to the s ufficiency of an indictment cannot

be tested in a ha beas corpus pr oceeding. See Haggard v. State , 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971) ; Brown v . State , 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969) . A panel of this Court recent ly held th e same in a capital case.2

Barber v. State , No. 01C01-9408-CR-00281 (Te nn. Crim. App., Feb. 23, 199 5).

Nonetheless, we have considered the subst ance of the petition er’s claim and determine it to be withou t merit. At t he time of the offense in thi s case, agg ravated rape was defined as the “unlaw ful sexual penet ration of another accompanied” by certain enumerat ed aggrav ating circumstances, inc luding that the defendant causes personal inj ury to the victim. T.C.A. § 39-2-60 3 (1982). The peti tioner contends the indictment at issue here charged th at the petitioner did “unlawfully and f eloniously engage in s exual penetr ation of [the vi ctim] by us e of fear and coercion and accompanied by and causing pe rsonal inju ry to [the victim].” This languag e was sufficient under the law as i t existed at the time. The st atutory requirements for an indictment were found in § 40 -1802 (now § 40-13-202 (1990)), which provided simply that: The indictment mu st state the facts constitu ting the offense in ordinary and concise l anguage, w ithout proli xity or repetiti on, in such a manner as to enable a pe rson of common u nderstanding to know what is intended, and w ith that degree of certainty which w ill enable t he court, on convicti on, to pronounce th e proper judg ment.
Furthermore, in Campbell v. State , 491 S.W.2d 359, 361 (Tenn. 1973) (emphasis suppl ied), whi le addressingthe sufficiency of an indictment cha rging t he off ense of murder, our Supr eme Cou rt state d the f ollowing:

While it seems clear that t he indictment i n Witt was insufficient in that it failed to charge an el ement, that the murder was committ ed unlawfully , in either t he language of the statute or common law or words of equivalen t import, the dec ision is confusing because of the language, ‘fatally defecti ve in omitt ing the charge that the offense was committed feloniously, or wit h malice aforethoug ht; and containi ng no wor ds of equivalent import.’ It is clear , however, that had the indictm ent used the words ‘fel

oniously’ or ‘unla wfully’

, it would have be en sufficient. We agree with this pr

oposition. By

containing the words found in the languag e of the statute, the indictmen t at issue here sufficien tly apprised the appellant of th e offense charged under

the law at

the time, and is

therefore val id. See State v. Di son , No. 03C01-9602-CC-00051 (Te nn. Crim. App., Jan. 31, 199 7). Thus, the petitioner’s atta ck must fail.3 For the reasons stated above, it is hereby ORDERED, pursuant to Rule 20, Rules of the Court of Criminal Appeals, that the judgmen t of the trial court dismissing the petition for writ of habea s corpus is affirmed. Costs of this appeal shall be assessed against the petition er.

Enter, this t he ___ day of June, 1997.

__________________________________ DAVID G. HA

YES, JUDG E

__________________________________ JOE B. JONES, PRESIDING JUDGE

__________________________________ JOE G. RILEY , JUDGE